Justice Beyond Law: Liberalism, Ubuntu, and the Colonial Legacy
- Devin Arasa
- Mar 2
- 11 min read
We often consider justice an end achieved through external means, one party doing something in the interest of another, but is this justice? Or is it a conflation of justice and punishment? Although they may run concurrently, are they in pursuit of the same goal? This question lies at the heart of Helene Cixous' poignant critique of democracy and its relation to law. As she asserts, "There is a fundamental lie in the democratic show…which tries to veil the gap between law and justice." Antije Krog's Country of My Skull provides an opportunity to further explore these questions, particularly in the context of South Africa's struggle for justice post-apartheid. Despite complete control of the government, South African leadership remained bound in their attempts to achieve justice by the government's European political structures and reliance on enlightenment ideologies. Liberal democracy operates as if law and justice are synonymous. The failure to notice this misconception may lead to the further obfuscation of the two and the failure to achieve true justice. In this paper, I propose that Liberal European structures of governance are incompatible with indigenous, communitarian conceptions of justice in postcolonial Africa. This is important as the structure of governance sets the standard for important moral and political questions like how to live, distribute justice, and dole punishment. All three of which divide traditional African and European theory. In order to support this claim, it will (1) explore how the conception of liberal philosophy led to the establishment of colonial oppression, (2) explain the fundamental difference in traditional European and South African understandings of human nature, (3) apply that understanding and utilize it to recognize why liberal policy failed in South Africa, (4) assess liberal tradition's residual effects in the reconciliation of South Africa post-apartheid, (5) demonstrate that South Africa's Truth & Reconciliation Commission succeeded in establishing justice on its own terms. While (1) will exclusively refer to philosophical writings related to the liberal tradition, (2) - (5) will be backed with evidence from excerpts of Country of My Skull.
The English Civil War, the conflict that led to Thomas Hobbes' infamous claim that outside the confines of society, "the life of man, [is] solitary, poor, nasty, brutish, and short," (103) directly led to the enforcement of Apartheid in South Africa. Hobbes' Leviathan shifted European understandings of individuality and decision making, grounding them in a theory of instrumental rationality, the belief that human nature compels persons to primarily aim to maximize their own self-interests. This assumption of human psychology laid the groundwork for the establishment of Locke's liberal philosophical traditions which aimed to be a comprehensive and universal system of political governance for societies at large. Locke's system of thought qualified that all people must be able to pursue their own ends of life, liberty, and property. Although these rights are meant to give people equality of opportunity, the misapplication of these rights, specifically the withholding of these rights from certain indigenous populations created innate inequality between colonizers and colonized within those settings. Unfortunately, even the founders of these systems, who claimed that men are equal, actually actively supported this inequality. For example, Locke's labor theory of property, to own land is to cultivate it, is grounded in the assumption that one who farms land is more entitled to it than one who hunts or gathers on it. Curiously, though, these thinkers may not necessarily be compromising their views of equality of opportunity. There is no indication that Locke considers Indigenous peoples to have less humanity than Europeans. Their fault instead lies in their assumption that humans are innately rational. The assumption that all Indigenous peoples of non-European nations also strive to act solely in self-interest led to uneven power structures in colonized societies. In South Africa, inequalities based on this misapprehension of human psychology led to a miscarriage of justice and severe oppression.
Indigenous South African conceptions of human nature more closely align with understanding humans as reasonable beings. According to John Rawls, the rational and reasonable are "distinct and independent" (51) of each other. In the rest of the text, "rational" and "reasonable" will refer solely to our below definitions. They will be used in contexts that juxtapose innate self-interest vs. innate group interest. Rationality, in Rawlsian terms, is "adopting the most effective means to ends" (50) in order to seek "ends and interests peculiarly… [their] own." (50) To be reasonable for Rawls is to "seek a social world in which, [citizens] as free and equal, can operate on terms that all can accept." Reasonable citizens believe in the self but reject the liberal and egotistical tendencies of individualism. To be reasonable is to "view one another as free and equal in a system of cooperation." (xliv) By "operating on terms that all can accept," (49) the needs of the group as a whole are, without exception, prior to one's desires. Reasonableness as a state of being is clearly demonstrated in South African traditions like Ubuntu. Ubuntu is an African tradition that emphasizes the connection between a person and her community. Krog provides a definition in the text from philosopher John Mbiti that captures the differentiation with a Cartesian flair: "I am because we are, and since we are, therefore I am." (143) There are plenty of details that showcase the differences between the rational and reasonable in Krog's book, such as African peoples referring to each other either as "brother" or "sister" instead of the distant and formal honorifics of "Mr." and "Mrs." But nowhere in Country of My Skull is the dichotomy between rational and reasonable more apparent than in Krog's interaction with Professor Kondlo as they relisten to the Truth & Reconciliation hearing of Nomonde Calata. "Whites… have no ubuntu… they choke on all their rights, but they have no human compassion." (59) Kondlo's critique signals the disconnect between the individual and society in the liberal tradition. Community is sacrificed in the quest for individuality, leading man to become hollow and isolated. Not only is community lost for Kondlo, but an integral part of humanity- concern for others. Only in rational societies would four countrymen be "permanently removed from society as a matter of urgency" (59) for simply being. Lack of compassion stems from the psychological distance between people. In these societies, whether or not one is important to another depends on the former's ability to provide a means for an end. What follows is that laying groundwork in rational, individualistic government ironically tends to ignore the importance of individuals themselves, reducing people to mere means to the government's ends. This feature of the government is most visible in its justice system. The structure underlying the system was designed to maximize efficiency, but in doing so, reduces unique cases to penal codes reserved for crimes that the government deem to be of similar nature. In doling punishment, it abides by whatever statute or precedent has been established in similar situations. This bureaucratic system attempts to further optimize its duties by merging two different processes into one: the process of justice and the process of punishment. While this might be considered correct for people who come from traditions of rationality, for reasonable groups, the consequences of being "choked with rights" (59) prove that liberal frameworks are inherently incompatible with their ideals.
The incompatibility of liberal governance and Indigenous ubuntu ideals was a major factor in the escalation of oppression in South Africa, first because of a misunderstanding between conceptions of human nature and, later because of hardened individualism. This friction, eventually culminating in Apartheid, represents a failure of liberal governance in setting up a sustainable colonial society and proves the lack of universality of the tradition in practice. The Land Act of 1913 might be considered the line of demarcation between the end of misunderstanding in South Africa and the full acceptance of superiority. Whereas prior to the act, colonials of European descent took advantage of the Ubuntu of African peoples (while harbinging views of subjective superiority), 1913 marked the point when it became universally accepted in the colony that Ubuntu was a weakness of will and proof of inferiority. This meant that the last protective enlightenment ideal of "being all equal and independent" (Locke, 44) finally did not apply to Africans, clearing the way for rational peoples to use them as means to ends. In 1948, the Afrikaner National Party took over and implemented the policy of ‘separateness’ known as Apartheid. The complete detachment of the virtue of humanity by Afrikaaners is a jarring aspect of Country of My Skull. Between the horrors of brutality suffered by the colonized, Krog peppers the text with snippets of Afrikaaners' beliefs, displaying a lack of compassion and cruelty. Most of which imply that the subjugation of Africans is not only acceptable but right. "If these things were done to me, I would hate deeply and passionately, like the Russians. I would have destroyed everything around me. The fact that they didn't shows you that blacks are not even able to hate sufficiently" (Krog, 213), said an anonymous farmer during a hearing. Not only does this show superiority, but the distortion of individualism into a sort of infallibility. While it had been developed as a science motivated by protecting people's right to self-interest, over time, it became ‘It is my self-interest, therefore it is right.’ This egoism can bend the truth in any way it pleases. This, as well as leveling people into one equal mass through liberal theory, meant that those who considered each other equal could live vicariously through the exceptional and claim those achievements as their own. For this farmer, because one group of people whom he considers his equals did something in a completely different circumstance, with different hierarchies of power and levels of oppression and dominance, he concludes that A) he would also be able to achieve that end B) that was the right way of navigating that situation and C) any action by those inferior that do not match the superior's actions show's the lack of competence of the inferior. For Nomfundo Walaza, this is "the clearest proof that whites with their self-centered, selfish, capitalistic character have never been able to fathom the essence of humanity." European subjugation and humiliation of Africans under the guise of individualism and rationality had led to the absurd, an existence lacking any autonomy as all actions are contingent on European decisions which can only be described as injustice. Since it is not a fundamental truth of humanity to hate one based on skin color or ethnicity, the deeply disturbing and life-denying escalation of hatred can be attributed only to imperialism, condoned by liberal theory and practice, which takes form in democratic governance. Any system that strives for justice and produces the exact opposite is clearly not an effective means of achieving that end.
There are two final reasons why European conceptions of justice are incompatible with Ubuntu. First, the individual and community are interlinked, therefore, individual justice is insufficient. Even if everyone affected had received justice for what had been done to them, they would still not have received justice for what happened to all. Secondly, the goal of justice in a community where all are interlinked is to produce universal human flourishing. Human flourishing is only achieved if it is always happening. The only way humans can always flourish is if flourishing is not contingent on experience. Therefore, justice can only be achieved if it is self-sufficient. Conflating justice with punishment conflicts with Ubuntu ideals as justice then becomes contingent on the action, i.e. whether or not one receives punishment. In this scenario, justice is a zero-sum game, promoting a rational ideal that 'self-interest' leads to human flourishing. One side will feel like justice is served, while the other will feel cheated. Ultimately, one person's worth of justice will be distributed unevenly amongst two people, which can never lead to universal human flourishing. In liberal governance, this is the only way 'justice' is distributed. Post-Apartheid, the new ANC government faced difficulty reconciling the two. After all, they had taken control of a structure of government that forty-four million people depended on for security, education, healthcare, and infrastructure. No matter the ideals of the people, the actions of the previous administrations left a permanent impact on the land, leading to the impossibility of governing in any way that did not at least have liberal sentiments. Because of this, even though the representatives changed, the structure of government stayed the same. Because the structure stayed the same, the most dynamic problems, like economic inequality, had only received static changes, and its former constituents still had an excuse to hold on to their individualism. Even though most now agreed that Apartheid was wrong, the rational response was to feel guilt, but guilt does nothing productive according to Nomfundo Wazala "guilt immobilizes you. 'I am guilty–so what can I do?'" (Krog, 213) It is a response that expresses regret but not remorse, never actually addressing the issue. Since no action is done by those who feel guilty, others try to take action for them. Walaza critiques pure reformative justice as an effect of guilt. "You are guilty–so give me a thousand rand" (213) leads back to justice being zero-sum. Therefore, true justice for African people had to occur outside of government.
The Truth & Reconciliation Commission, by having the backing of the government (which is important for people taking it legitimately) without having any ties to politics or the structure of government, was the best possible solution for the achievement of justice in South Africa. It provided a space where Africans could reflect, learn, and grieve together. By telling their stories and learning the truth, they have the ability to gain closure for their own experiences as well as those of their mothers, fathers, sisters, brothers, daughters, and sons. It provided a space to deeply grapple with the emotions that had not been properly processed up to that point. Listening to Nomonde Calata's cry, Professor Kwandiwe Kondlo explains the importance of the situation.
"To witness that cry was to witness the destruction of language…This particular memory, at last captured in words, can no longer haunt [Nomonde]...because [she has] taken control of it…So maybe this is what the commission is all about–finding words for the cry of Nomonde Calata." (Krog, 57)
Nomonde's cry, one that likely consisted of all the emotions she felt through living under Apartheid, could be considered the ur-text of the Truth Commission and South African experience post-apartheid. "For me, this crying is the beginning of the Truth Commission," (57) says Kondlo. It is the necessary action taken in order for justice to flourish. The next step is reconciliation. Contrary to beliefs that conflate justice and punishment, reconciliation is not about forgiveness or restoring relations but reconciling with oneself. It meant resolving the feelings of hatred with love and despair with hope in order to return oneself to a state of Ubuntu so the group will flourish.
"This thing called reconciliation…if it means this perpetrator, this man who has killed Christopher Piet if it means he becomes human again, so that I so that all of us get our humanity back…then I agree, I support it all." - Cynthia Ngewu, mother of Piet. (Krog, 142)
This notion of justice is positive-sum. It does not come about through outside action like the swing of a gavel, but individually, as one needs to accept it within oneself and then communally, as the group takes the same steps. While the Truth & Reconciliation Commission had been ridiculed, it was solely ridiculed under liberal sentiment: lack of punishment, failure to establish guidelines, and impartiality in political matters. Of the matters that it intended to accomplish which can broadly be summarized as aiding justice and narrowing the social distance between people, it was indeed successful.
The failure of European liberal governance in South Africa can only be attributed to instrumental rationality not being as universal as its founders assumed it to be. Although rational thought might have advantages in a vacuum, its incompatibility with other conceptions of human psychology, namely, reasonableness and its tendency to lead to oppression and domination, makes it a faulty ideology. Its fault proves that abstract theory is neither the only nor the right way to govern people. Using theory often trivializes human experience, leading to conflation of justice with punishment, which never produces true human flourishing. Despite attacks on the Truth & Reconciliation Commission, its focus on justice as positive-sum and reconciliation as self-sufficient are far more in line with traditional African Ubuntu philosophy than rational conceptions. Only by embracing the traditional views that guide a group's nature can societies grow in ways that reflect their own truth and justice.
Works Cited:
Hobbes, Thomas. Leviathan. 1651. Penguin Classics, 2017.
Krog, Antjie. Country Of My Skull. Random House, 1998.
Locke, John. Two Treatises of Government. 1689. Dover, 2002.
Rawls, John. Political Liberalism. 1993. Columbia University Press, 1996.
West, Cornel. The Cornel West Reader, Basic Civitas Books, 1999
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